FATCA Reporting


Simon Misiewicz

4th August 2021

The frequently asked questions about FATCA Reporting

As specialist tax accountants, we are regularly asked about FATCA Reporting. We will look to answer the below questions in this Article.

“Are you paying too much tax?”

“What are the basics of FATCA Reporting?”

“Who is FATCA Reporting aimed at?”

“What needs to be filed under FATCA?”

“Are there reporting thresholds for FATCA?”

“How does FATCA affect Americans abroad?”

“Are there penalties for FATCA non-compliance?”

“How can I avoid FACTA tax?”

“How does this affect our UK readers?”

Are you paying too much tax?

US/UK ex-pat tax experts know that US tax regulations can be complex and confusing.

There are many reasons why people living in the United States pay far more tax than they need.

This is because:

-They do not know what they do not know.

-They have not spoken to a tax specialist that knows all the UK and US tax laws.

-Their accountants in the UK are not knowledgeable about the US tax laws under the IRS.

-Their CPAs are not knowledgeable when it comes to the UK tax laws under HMRC.

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What are the basics of FATCA Reporting?

Many of our clients find FATCA Reporting overwhelming and difficult to understand.

The Foreign Account Tax Compliance Act (FATCA) is a US federal law that targets US persons concealing assets held in foreign accounts.

FATCA was created as part of the 2010 HIRE Act and as a result of FATCA legislation, the IRS has recovered billions of dollars owed from those housing assets overseas.

Under FATCA, all US citizens must report specified foreign assets to the IRS if they exceed certain thresholds.

These thresholds are different depending on whether the person is living in the US or living abroad.

In addition to reporting requirements for individuals, foreign financial institutions must also report their American clients’ assets to the IRS.

Failure to do so can result in a 30% withholding on certain payments from the US. The primary goal of FATCA is to force tax evaders to come forward.

One of the unfortunate elements of FATCA Reporting is that some US ex-pats have been targeted and experienced additional scrutiny due to this tax legislation since 2010.

It is perfectly reasonable that US ex-pats will have assets and accounts overseas as part of their daily lives.

Because of the extra reporting, FATCA has been called a violation of privacy by some.

FATCA has dramatically changed the financial and tax environment abroad for Americans.

These changes cannot be ignored and have forced many Americans to consider maintaining more investments in the US.

Who is FATCA Reporting aimed at?

FATCA is aimed at US persons.

This broad category includes US citizens, US residents, Green Card holders, and Trusts controlled by US persons. For example, this includes British people that live in Florida, within the United States of America.

FATCA regulations also mean that banks must screen all of their clients to determine which ones appear to be US citizens. This must then be reported directly to the IRS.

FATCA is a complex and broad set of rules designed to increase tax compliance by Americans holding financial assets outside the US.

The legislation was drawn up mainly as a response to the 2009 UBS offshore banking scandal, which highlighted that many Americans were maintaining significant financial holdings in Swiss bank accounts reporting or paying the US taxes due on those overseas assets.

FATCA created new self-reporting requirements and raised penalties for failure to fully comply with reporting rules.

Some of these reporting rules are complex.

The legislation imposes on all foreign financial institutions a new legal mandate to outline who among their clients are US persons and provide the IRS with information on those accounts.

FATCA is backed up with harsh enforcement mechanisms to ensure that all non-US financial institutions adhere to the reporting requirements.

US taxpayers are also subject to significant penalties if they fail to fully comply with the special rules relating to non-us financial assets.

FATCA legislation defines foreign financial institutions broadly and includes every kind of financial institution outside the US.

Captured under FATCA are banks, brokerage firms, trust companies, insurance companies, retirement plan administrators and mutual fund companies.

Non-publically listed corporations and business entities registered outside the US but owned 10% or more by a US person must also report the details of the stake held by the US person meeting that threshold to the IRS.

A useful summary of FATCA Reporting for US taxpayers has been produced by the IRS, which is worth reviewing.

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What needs to be filed under FATCA?

Filing requirements under FATCA are classed as any items that are specified foreign assets.

Although this is quite broad, the IRS defines these assets as:

– Foreign pensions

– Foreign partnership interests

– Foreign stockholdings

– Foreign mutual funds

– Foreign-issued life insurance

– Foreign hedge funds

– Foreign real estate held through a foreign entity

It is important to note that your foreign home does not need to be filed under FATCA.

Specified foreign financial assets also include foreign financial accounts and foreign non-account assets held for investment only.

This covers foreign stocks and securities, foreign financial instruments, interests with foreign entities, and contracts with non-US persons.

There are exceptions to the reporting requirements.

You do not have to report the following assets as the IRS does not consider them to be specified foreign financial assets:

– A financial account maintained by a US-based organisation, such as the US branch of a foreign financial institution, certain foreign subsidiaries of US corporations, or a foreign branch of a US financial institution.

– A beneficial interest in a foreign Trust or Estate, if you do not know of the interest.

– An interest in any social security, any social insurance or similar program of a foreign government.

Comprehensive guidance from the IRS on the reporting requirements under FATCA for individuals, institutions and governments are worth researching.

Are there reporting thresholds for FATCA? 

Reporting thresholds under FATCA vary based on if you file a joint income tax return or live abroad.

If you are single or file separately from your spouse, you must submit a Form 8938 if you have more than $200,000 of specified foreign financial assets at the end of the year and you live abroad, or more than $500,000 if you live in the US.

If you file jointly with your spouse, these reporting thresholds double.

The IRS considers you to be living abroad if you are a US citizen whose tax home is in a foreign country and you have been present in a foreign country or countries for at least 330 days in a consecutive 12-month period.

For taxpayers living abroad, you must file a Form 8938 if you must file an income tax return and:

– You are married filing a joint income tax return and the total value of your specified foreign financial assets or more than $400,000 on the last day of the tax year or more than $600,000 at any time during the year. These thresholds apply even if only one spouse resides abroad.

– Married individuals who file a joint income tax return for the year will file a single Form 8938 that reports all of these specified foreign financial assets in which either spouse has an interest.

– You are not a married person filing a joint income tax return and the total value of your specified foreign financial assets is more than $200,000 on the last day of the tax year or more than $300,000 at any time during the year.

For taxpayers living in the US, you must file a Form 8938 if you must file an income tax return and:

– You are unmarried and the total value of your specified foreign financial assets is more than $50,000 on the last day of the tax year or more than $75,000 at any time during the tax year.

– You are married filing a joint income tax return and the total value of your specified foreign financial assets is more than $100,000 on the last day of the tax year or more than £150,000 at any time during the tax year.

– You are married filing separate income tax returns and the total value of your specified foreign financial assets is more than $50,000 on the last day of the tax year or more than $75,000 at any time during the tax year.

How does FATCA affect Americans abroad?

Americans living abroad can self-report on their foreign financial assets under FATCA legislation. This is particularly the case where Americans live in a country like the United Kingdom and have investments and savings accounts.

The most common error made by Americans abroad is that since they have been hiding nothing, they need to file the one FATCA mandated reporting form.

For many Americans living abroad, all they need to do is file Form 8938.

The implementation of FATCA has also made the enforcement of old rules applicable through FBAR and PFIC more easily and more commonly enforceable.

In the absence of any real sense of threat of enforcement, individuals and even some tax professionals have been ignorant of the rules. FATCA has ended this ignorance.

Are there penalties for FATCA non-compliance?

The IRS states that penalties for failing to file under FATCA are $10,000 per violation, plus an additional penalty of up to $50,000 for ongoing failure to file after being notified by the IRS, as well as a 40% penalty on any understatement of tax owed on non-disclosed assets.

The most popular option with ex-pats to become compliant under FATCA reporting requirements is to file under the Streamlined Filing Procedures.

This is an IRS program that allows innocent delinquent filers the opportunity to catch up without late filing penalties.

The most important element of FATCA legislation is the severe penalties that the law imposes on foreign financial institutions found to be non-compliant with the mandated reporting on the financial activity of their US clients.

Foreign financial institutions not complying with the rigorous reporting requirements are subject to a 30% withholding tax on all US-sourced payments.

Any financial institution in the world not voluntarily complying with find that 30% of any US-sourced payment will be withheld.

US stocks and bonds are widely owned globally.

This means nearly all financial institutions in the world will receive US-sourced payments, mostly on behalf of clients who have no connection to the US.

Seeing 30% of these payments being withheld by the IRS is not an option for foreign financial institutions.

There has been almost complete compliance by foreign financial institutions to comply with FATCA disclosure requirements.

FATCA has meant a significant rise in the enforcement of these rules.

Americans abroad should become familiar with the penalties for non-compliance.

It is also advisable to speak to a specialist US tax expert who can assist you further in navigating FATCA.

How can I avoid FACTA tax?

Avoiding FATCA is not an option if you wish to remain a US citizen.

There are ways to minimise FATCA tax, including the following measures:

– First, inventory all of your non-US assets and identify which ones are subject to FATCA Reporting by a foreign financial institution.

– Make sure that these assets are not PFICs or foreign Trusts.

– Move investment accounts to US-based financial institutions.

– Build a diversified portfolio to account for long-term residency plans.

You may be interested in our main Article on UK Tax status if you are looking to move to the UK or from the UK. You may also be interested to know how more about our property tax services if you are looking to invest in the UK buy to let properties.


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